Short Wins – Assault on An Officer and the Ex Post Facto Clause

There were three wins in the federal circuits last week, discussed below. The most interesting is probably United States v. Zabawa which gives a fair shake at sentencing to someone who assaulted an officer (who headbutted him).

It reminds me of a joke Bill Clinton liked to tell during the impeachment:

A kid comes home from school with a black eye. His mom asked what happened. The kid says, “Mom, it all started when the other guy hit back.”

1. United States v. Reed, Fifth Circuit: Appellant was convicted of trafficking in counterfeit goods. After voluntarily dismissing his appeal, he filed a 28 U.S.C. § 2255 motion seeking to vacate his conviction and sentence for ineffective assistance of counsel, among other grounds. The district court denied the motion and denied a certificate of appealability. On appellant’s motion, the Fifth Circuit granted a certificate of appealability only on the issue of whether the district court erred in denying, without having an evidentiary hearing, appellant’s ineffective assistance claim. The Fifth Circuit vacated the district court’s order on that issue only and remanded for a hearing.

2. United States v. Whatley, Eleventh Circuit: Appellant was convicted of robbing several banks. During his sentencing, the district court erred when it applied a four-level enhancement for abduction of the bank employees because appellant ordered them to move around to different areas within the banks. The case was remanded for resentencing with instructions for the court to apply the two-level enhancement for physical restraint of the employees.

3. United States v. Zabawa, Sixth Circuit: While in federal custody, appellant assaulted an officer, who responded by headbutting appellant, which left the officer with a cut over his eye. As a result of this interaction, appellant was convicted of assaulting a federal officer under 18 U.S.C. § 111(a)(1) and (b). Because § 111(b) specifies that the person must “inflict[]” the predicate injury to the officer, rather than cause it, appellant’s conviction under (b) was improper: the officer himself admitted that his injury might have resulted from his headbutt to appellant, rather than from any force appellant applied to him. As a result, appellant’s conviction under § 111(b) was reversed.